Forbes: Why Tom Brady Will Win If He Sues

YOUGOTMOSSED said:

There's more than one way to skin a cat. Brady can also claim that Goodell is being mean to him and his team in retaliation for Brady being a plaintiff in the prior anti-trust suit against the NFL. That would open the door to discovery of evidence of unfair/inconsistent treatment.

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I think there are a number of ways Brady can attack this.

1) He intended to call Goodell as a witness, and asked Goodell to recuse himself because of that. Certainly in an arbitration hearing you are entitled to question the man who oversaw the investigation, gave the parameters to the investigator and no doubt instructed him on what he was hired to do. (Note that there is documentation that the Patriots ask Wells to look into matters involving misdeeds by the league and how they impacted the investigation and Wells says he wasn't hired to do so)
2) Unfair labor practices. Regardless of who is given power to punish and resolve appeals under a CBA there is still the matter that workers, particularly unionized workers are not allowed to be denied the right to work arbitrarily, capriciously or without proof. Brady is a unionized employee, and will have to be treated as such regardless of his stature. Assume Rosey the Riveter was suspended for 3 months (1/4 of a year as Brady is) for something she did not do because her union agreed to a weak set of standards, and then it was upheld by the employer. She would certainly be entitled to her day in court based upon there not being enough proof to deny her right to employment.
3) Perhaps the Brady vs NFL could be an issue showing bias.
4) The severity of the punishment, even if guilty is out of line with other punishments.
5) The league has operated in a bizarre fashion in denying due process. (Leaks, giving wrong data to team, and compelling them to not make it public when they did give the right data, etc)

I am sure there are more than that as well.

YOUGOTMOSSED said:

Then you follow up with- which communications are you objecting to disclosing and why?

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You don't get to that because the request is too broad.

AndyJohnson said:

I think there are a number of ways Brady can attack this.

1) He intended to call Goodell as a witness, and asked Goodell to recuse himself because of that. Certainly in an arbitration hearing you are entitled to question the man who oversaw the investigation, gave the parameters to the investigator and no doubt instructed him on what he was hired to do. (Note that there is documentation that the Patriots ask Wells to look into matters involving misdeeds by the league and how they impacted the investigation and Wells says he wasn't hired to do so)
2) Unfair labor practices. Regardless of who is given power to punish and resolve appeals under a CBA there is still the matter that workers, particularly unionized workers are not allowed to be denied the right to work arbitrarily, capriciously or without proof. Brady is a unionized employee, and will have to be treated as such regardless of his stature. Assume Rosey the Riveter was suspended for 3 months (1/4 of a year as Brady is) for something she did not do because her union agreed to a weak set of standards, and then it was upheld by the employer. She would certainly be entitled to her day in court based upon there not being enough proof to deny her right to employment.
3) Perhaps the Brady vs NFL could be an issue showing bias.
4) The severity of the punishment, even if guilty is out of line with other punishments.
5) The league has operated in a bizarre fashion in denying due process. (Leaks, giving wrong data to team, and compelling them to not make it public when they did give the right data, etc)

I am sure there are more than that as well.

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There's an easier and more direct one :

The CBA authorizes the Commissioner, not his lackey, to issue punishment. The NFL has to admit one of two things :

Either :

1) It was Troy Vincent alone issuing the punishment which likely violates the CBA (NFLPA has already claimed this).

or

2) It was Goodell or (Goodell and Vincent) in which case Goodell is arbitrating his own decision. Which may not violate the CBA but appears to be unfair on it's face.

BelichickFan said:

There's an easier and more direct one :

The CBA authorizes the Commissioner, not his lackey, to issue punishment. The NFL has to admit one of two things :

Either :

1) It was Troy Vincent alone issuing the punishment which likely violates the CBA (NFLPA has already claimed this).

or

2) It was Goodell or (Goodell and Vincent) in which case Goodell is arbitrating his own decision. Which may not violate the CBA but appears to be unfair on it's face.

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I'm not sure that it is iron clad that the NFL would lose an argument that says the power residing in Goodell includes delegating to a subordinate.
It would be a point, but not their best one IMO.

TomPatriot said:

You don't get to that because the request is too broad.

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You start off by making the request. Other side objects that it's too broad (and other objections) and you work from there.

AndyJohnson said:

I'm not sure that it is iron clad that the NFL would lose an argument that says the power residing in Goodell includes delegating to a subordinate.
It would be a point, but not their best one IMO.

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Goodell has already stated it wasn't a "delegation" and he concurred :

http://www.nfl.com/news/story/0ap30...roger-goodell-to-nflpa-regarding-brady-appeal

I did not delegate my disciplinary authority to Mr. Vincent; I concurred in his recommendation and authorized him to communicate to Mr. Brady the discipline imposed under my authority as Commissioner.

I know nothing about the law or arbitration. But it seems wholly unfair for the arbitrator to have stated, in writing, that he concurs with, and authorized, the punishment himself.

TomPatriot said:

This article reads like it was written by a young lawyer who suffered a year or two in a big law firm. It has no substance, like the legal standard for judicial review and whether Wells' opinion violates that standard. Discovery and its cost may lead to settlement but the essence of any settlement or decision will still evolve from a discussion and analysis of the facts and the law.

After reading Wells' report and comparing Goodell's punishment given to Brady to other cases, this is pretty much the textbook definition of "arbitrary and capricious," which is the standard for judicial review of an arbitrator's decision. I'd love to be in Kessler's shoes no matter where the case is venued.

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I really don't see this being venued anywhere but a Federal District court in MA. It may be initially filed in a MA state court but it almost certainly will be removed up to Federal court.

Is it better that this be seen in a federal court or not?

VectorPrime said:

Is it better that this be seen in a federal court or not?

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MA state court would be ideal where you would probably get judges who are season ticket holders.

I mentioned a while ago that MA surely has more labor friendly laws then most other states, more friendly than at the federal level.

VectorPrime said:

I mentioned a while ago that MA surely has more labor friendly laws then most other states, more friendly than at the federal level.

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It will probably wind up in MA Federal Court. NFL may try to move venue to NY but I doubt they will succeed.

Here's Sal Palantonio's take via Mike Reiss. http://espn.go.com/blog/boston/new-...te-viewpoint-highlights-how-nfl-in-tough-spot
This was my favorite part.
"Your old man used to say what? If you don't know what to do, do nothing. I think behind the scenes they don't know what to do. The bottom line is that the NFL's attorneys have most likely, from what I've been told, gone to the commissioner and said, 'We can't come up with a ruling that is defensible in court.' The NFL, I believe, thinks it's going to lose in court. And if they can't come up with a ruling on this appeal that is defensible in court, then they are going to look awful silly.

XLIX said:

I love what he writes about discovery. It seems to me that, given the fact that Brady already testified under oath, he has nothing to lose by forcing the various officers in the league office to testify under oath.

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Can the NFLPA's discovery include docs about the "trap" set up by the Ravens and Colts prior to the game? Because that will really hurt the League's "integrity"

patfanken said:

I thought this was a pretty poor article. I guess it would have been OK if the point of the story was, "the effect of discovery has on civil litigation". Here's my concern. The merits of the Federal court case that Brady and the NFLPA are about to start. is going to be decided on the VERY narrow issue of did the NFL follow the proper appeals procedures as subscribed to in the latest CBA.

From what I understand, THAT is the only issue. It will have nothing to do with the events of the AFCCG. It will have nothing to do with good or bad science. It will have nothing to do with the bag job Kensil tried to implement or the slander job Goodell followed with after the fact. The issue is very limited, so I would suspect what each side may request for discovery will also be very limited. For example, demanding emails concerning Kensil's communications before and after the game would probably be deemed irrelevant. Though it CERTAINLY would be deemed relevant in any Defamation suit.

This case will be all about whether the league followed the correct PROCEDURES in the appeals process. However that being said, I would wonder if they can subpoena owner communications to discover just who were the "small group of influential owners" that were pushing for Goodell to hold the line. Because that kind of influence to the so called unbiased arbiter of an appeals process seems clearly to break any concept that this was a fair and open process. Once the hearing is over, NOONE is supposed to be able to lobby the arbiter. Now THAT would be an interesting piece of discovery.

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I'm not sure it's quite as strict as you think Ken. For example, I'm doubtful that malicious leaking of incorrect information in an effort to drum up outrage against the Pats would be consider following proper procedure according to the CBA.

I want Brady to woop the NFL like he wooped Smiths butt in Pittsburgh ..
"We're gonna come back and kick your --- on the next drive, Smith. You're gonna be ------- sorry you ever said anything."

I want it to get real up in here...

YOUGOTMOSSED said:

You start off by making the request. Other side objects that it's too broad (and other objections) and you work from there.

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Good luck with that. A federal magistrate will say "make your requests more specific." That's because you are making the request.

Anyway, I rather talk football.

Ivan said:

*Sal Pal apparently just went on record that he believes that NFL legal counsel are telling Gödel to exonerate Brady because they are certain to lose in court, and that Gödel is now trapped by the very circumstances they have created. Lmao-too f.cking funny.

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Karma. She's a ***** sometimes.

Ivan said:

The NFL is so screwed, at least imo. There is no doubt in my mind that the league office has been both covering up an attempted frame job and trying to orchestrate events to achieve the desired ending from the day of the AFCCG onward, and if Kessler gets the kind of discovery they are taking about in this article then the code of silence they enforce on their broadcast partners and the media who cover them will no longer be enough to hide their misconduct. ...

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This got me wondering whether there would be a duty of due care and confidentiality in discipline matters under the CBA or otherwise? If so the leaks might give Kessler all he needs to get judicial review, as well as opening the leaks as a pertinent issue to justify discovery of phone records regarding contacts with media...

Hoodie said:

Here's Sal Palantonio's take via Mike Reiss. http://espn.go.com/blog/boston/new-...te-viewpoint-highlights-how-nfl-in-tough-spot
This was my favorite part.
"Your old man used to say what? If you don't know what to do, do nothing. I think behind the scenes they don't know what to do. The bottom line is that the NFL's attorneys have most likely, from what I've been told, gone to the commissioner and said, 'We can't come up with a ruling that is defensible in court.' The NFL, I believe, thinks it's going to lose in court. And if they can't come up with a ruling on this appeal that is defensible in court, then they are going to look awful silly.

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I love the part which says the following:

The bottom line is that the NFL's attorneys have most likely, from what I've been told, gone to the commissioner and said, 'We can't come up with a ruling that is defensible in court.' The NFL, I believe, thinks it's going to lose in court. And if they can't come up with a ruling on this appeal that is defensible in court, then they are going to look awful silly.

This is the first I've heard even rumor of the NFL knowing they don't have a legal leg to stand on.

XLIX said:

I love the part which says the following:

The bottom line is that the NFL's attorneys have most likely, from what I've been told, gone to the commissioner and said, 'We can't come up with a ruling that is defensible in court.' The NFL, I believe, thinks it's going to lose in court. And if they can't come up with a ruling on this appeal that is defensible in court, then they are going to look awful silly.

This is the first I've heard even rumor of the NFL knowing they don't have a legal leg to stand on.

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Yeah I noticed that too, it had me wondering who would be telling him what the privileged attorney-client discussions between the NFL and their lawyers have most likely been. More probably than not it is pretty tenuous or indirect, maybe some legal resource telling SalPal what they'd be saying if they were the NFL attorneys? Anyway, not sure it should be taken to indicate the NFL knows any such thing, seems more likely it's someone else's opinion (informed or not). Still, an interesting data point.